Safe Food: The Politics of Food Safety (16 page)

Soon after Mr. Espy took office, his staff warned him that federal conflict-of-interest rules applied more strictly to agency officials than to members of Congress or Mississippi legislators, and that he must be especially careful not to accept gifts or favors from people working for companies that might be affected by USDA regulations. This warning derived from interpretations of provisions of the 1906 Meat Inspection Act, designed originally to prevent corruption of meat inspectors. The law made it a federal crime to do anything to exert undue influence on an inspector. A later law, the Bribery, Graft and Conflicts of Interest Act of 1962, set penalties for anyone who offered “anything of value” with the intention of influencing a public official. Although
intention
was the crucial issue, federal lawyers have interpreted this law to mean that officials of government agencies should refuse
any
gifts—no matter how seemingly in-consequential—from representatives of companies with matters under USDA regulatory review.

Despite the warnings, Mr. Espy accepted a variety of favors from lobbyists for Tyson Foods, then the world’s largest chicken-processing company (and now the largest producer of beef as well). Early in 1994, federal investigators accused Mr. Espy of violating the Meat Inspection Act by accepting—or permitting a companion to accept—airline travel, tickets to sporting events, a small scholarship, and other gifts worth about $12,000 from Tyson Foods, plus similar gifts from other meat and poultry companies. The results of that investigation forced Mr. Espy to resign from his position as USDA secretary, and a later investigation by a special prosecutor led to his indictment by a federal grand jury. Eventually, Mr. Espy was acquitted of all charges, largely because the prosecutor could not convince a jury that the gifts were
intended
to influence the USDA. Although it is difficult to imagine what other purpose the gifts might have
served, the Supreme Court also ruled that Mr. Espy was entitled to accept them because they were not directly linked to regulatory matters.
³³

Federal prosecutors also accused Mr. Espy’s chief of staff, Ronald Blackley, of interfering with USDA attempts to regulate poultry safety. A USDA staff member told a reporter that Mr. Blackley had been surprised to learn that the agency was working on poultry rules: “He said to take [them] out of the computer. . . . We were a little shell shocked . . . wondering if we had all heard what we thought we’d heard. We put a stop to all poultry activity.”
³²

At the time, the scandal made the USDA’s ongoing efforts to improve poultry safety much more difficult. Some critics charged that the department’s proposed rules for poultry inspection were simply “an effort to prove that . . . Espy was not beholden to poultry interests.”
³⁴
When the agency decided not to go forward with the plan, officials had to deny that they had made this decision just to please the poultry industry. The Espy scandal, neither the first nor the last of its kind, was unusual only in that the favors were so visible and the issues so important. This particular USDA secretary had the opportunity and the ability to convert his department’s century-old inspection system to one better equipped to deal with microbial pathogens. Tyson Foods’ donation of tickets to sporting events demonstrated that even small favors produce substantial benefits if given at the right time, in this case just when the USDA was trying to get poultry producers to test for
Salmonella
and other pathogens. If nothing else, it worked greatly to Tyson Foods’ advantage to keep Mr. Espy preoccupied with responses to legal challenges from a special prosecutor. As if the political nature of this situation were not transparent enough, one of President Clinton’s last acts in office was to grant presidential pardons to Mr. Blackley and six food company executives and lobbyists who had been convicted of attempting to corrupt Mr. Espy. Reportedly, the White House
invited
defense lawyers to request the pardons, and granted them just hours before George W. Bush took office as president in January 2001.
³⁵

By the early 1990s, USDA officials had argued for two decades that the decision in
APHA
v.
Butz
meant that the department did not have legal authority to set limits on microbial contaminants in meat and poultry because pathogens like
Salmonella
were “inherent” in raw meat. As late
as 1993, the administrator of USDA’s Food Safety and Inspection Service (FSIS), H. Russell Cross, explained to a congressional committee: “At the present time, meat and poultry inspection laws do not define raw meat and poultry containing bacteria as adulterated.”
³⁶
As noted earlier, the USDA could have interpreted
APHA
v.
Butz
as giving the department considerable latitude to do whatever seemed necessary to protect the public, including setting performance standards—allowance limits verified by testing—for pathogens in meat. While Mr. Espy’s legal difficulties were front-page news, he chose Michael Taylor to become administrator of FSIS. Mr. Taylor, a lawyer, moved to the USDA from the FDA; there, his previous employment with Monsanto raised conflict-of-interest questions about his role in setting policy for regulation of genetically modified foods (see
chapter 7
). His actions at the USDA raised no such questions. In late September 1994, six weeks after assuming leadership of FSIS, Mr. Taylor gave his first public speech in his new job to an annual convention of the American Meat Institute. He said that it was high time for everyone involved in meat production and processing “to be driven as much by public health goals as by productivity concerns.” FSIS intended to take advantage of “the tools of microbiology to ensure that preventive controls are in place to reduce the risk of harmful contamination and to verify that those controls are working.” He announced that FSIS would soon propose regulations requiring installation of science-based HACCP systems in every meat and poultry plant. “Raw ground beef contaminated with
E. coli
O157:H7,” he said, “poses a serious risk to public health, and contaminated lots should be excluded from commerce.” The USDA intended to require the destruction or reprocessing of contaminated meat and “we expect companies who encounter contaminated lots of raw ground beef . . . to take similar action.”
³⁷

If that challenge was not enough to bring his audience to rapt attention, he explained that FSIS would be taking these actions on the basis of the department’s revised interpretation of
APHA
v.
Butz:

To clarify an important legal point, we consider raw ground beef that is contaminated with
E. coli
O157:H7 to be adulterated within the meaning of the Federal Meat Inspection Act. We are prepared to use the Act’s enforcement tools, as necessary, to exclude adulterated product from commerce. Finally, we plan to conduct targeted sampling and testing of raw ground beef at plants and in the marketplace for possible contamination with
E. coli
O157:H7. This sampling program . . . will serve as an example and an incentive for those commercial enterprises that produce, process, and market raw ground beef to control their processes and conduct their own tests.
³⁷

Furthermore, because
E. coli
O157:H7 is infectious at very low doses, FSIS would consider
any
level of contamination of ground beef with these bacteria to be unsafe, adulterated, and subject to enforcement action. The agency, however, would restrict this “sample, test, and destroy” approach to just this one pathogen,
E. coli
O157:H7, and to just this one product: ground beef.
³⁸

Food safety advocates admire Mr. Taylor for his courage in delivering this speech to an audience expected to be unsympathetic if not downright hostile. They also appreciate his skill in shifting USDA food safety policies to those more favorable to public health, especially at a time when the department’s leadership was in such deep trouble. Indeed, he needed courage. His speech caused consternation in the cattle, meatpacking, and grocery industries. Meat producers and processors understood that if the USDA considered
E. coli
O157:H7 an “adulterant,” they would break the law if they sold foods containing this pathogen. They would be vulnerable to criminal prosecution. As a representative of the American Meat Institute told the press, “the new USDA policy has the perhaps unintended consequence of creating rampant, irresponsible, criminal litigation.”
³⁹
Industry lawyers instructed their clients not to do their own testing of ground beef for
E. coli
O157:H7 because finding it would expose them to legal liability. Rosemary Mucklow, then the executive director of the Western States Meat Association, said, “How can FSIS treat
E. coli
in hamburger meat as an adulterant subject to enforcement strategies, while not applying the same standard to salmonella in broilers. . . . Automated chicken lines allow birds to leave the plant as Inspected for Whole-someness with . . . grossly unacceptable defects. . . . Such gross policy interpretation favoring the poultry industry and disfavoring the beef industry is a travesty indeed.”
⁴⁰
We will encounter further commentary from Ms. Mucklow later in these pages.

In the meantime, the American Meat Institute—which had opposed the safe-food-handling labels—now used them to complain that the proposed testing program would
cause
food safety problems. Microbial testing would “mislead consumers with promises of a safer food supply, and as a result they may relax their own cooking and handling standards.”
⁴
The Food Marketing Institute also shifted responsibility to consumers in its argument against the initiative: “It is essential that nothing dilute the consumer message that the proper cooking of meat eliminates food-borne pathogens.”
⁴¹
The two trade associations and five others quickly filed suit to block the pathogen testing plan, based on this wonderfully convoluted argument: because the USDA had done nothing to control
E. coli
O157:H7 since the first outbreak in 1982, the present situation could hardly be considered an emergency. This transparently self-serving argument prompted the
New York Times
to note the industry’s “odd way” of promoting public health: “Trying to give their obstructionist lawsuit a respectable veneer, the plaintiffs voice concern that the spot-inspection program could mislead consumers into relaxing their own safe handling and cooking practices. . . . It is not consumers the lawsuit seeks to protect but the industry’s right to sell tainted beef.”
⁴²

Among the many ironic aspects of this dispute, the trade associations’ lawsuit turned out to be heard by the very same Texas district court judge, James Nowlin, who had ruled against the USDA’s proposals to require food-handling labels on procedural grounds just a year earlier. This time, the court surprised observers by ruling in favor of the USDA. Its rationale: because ordinary cooking temperatures could not kill
E. coli
O157:H7, the USDA had good reason to consider these bacteria as adulterants and test for them. This decision at last permitted the USDA to redesign its ancient food inspection system and start testing for this one harmful pathogen. Industry groups, however, saw the decision as mandating a program that “fails to protect consumers, wastes tax dollars and violates the law,” and they vowed to “maintain our course of legal action to stop it.”
⁴³

The trade associations’ lawsuit had one additional—and unanticipated—consequence. It mobilized the families of children killed by
E. coli
O157:H7 to form their own group—Safe Tables Our Priority (STOP)—to lobby for more rigorous meat regulations. The group picketed a meeting of the American Meat Institute and held a press conference to accuse meat producers of obstructing safety efforts: “My 6-year-old son Alex deserves to be alive today. . . . I hold the meat institute personally responsible” and “It’s time to stop blaming consumers for not cooking and give them a clean product.”
⁴⁴
Another consumer group, the Safe Food Coalition, proposed a “simple household solution” to the problem of the industry’s intransigent refusal to test for
E. coli
O157:H7 and its persistent avoidance of accountability: obtain proof of responsibility. “Tired of being a victim? . . . Weary of subjecting your family to a game of Russian Roulette every time you buy a package of hamburger meat? . . . [When] unpacking groceries, tuck the supermarket receipt and a small lump of hamburger in a ziplock bag. Toss this in the freezer. . . . In five seconds, at virtually no cost, you’ve got accountability. . . . This simple act gives control back to you and tells industry loud and clearly that we’re not going to take it any more.”
⁴⁵

In this instance, the political context permitted the USDA to hold its
position and test one product (ground meat) for one pathogen (
E. coli
O157:H7). When the department attempted to extend testing requirements to other forms of meat and other pathogens, it again met with fierce resistance, as
chapter 3
will reveal.

By the early 1990s, the long history of collusion between meat producers, Congress, and the USDA seemed to have entered a new phase in which public interests held greater influence. Meat producers’ protection of the century-old inspection system no longer seemed credible. Although the industry contended that testing for microbes is unnecessary because so few samples are contaminated, this argument ignored a key point: even a small level of contamination can do great harm when the number of animals is large. For example, if just 0.2% of cattle are contaminated with
E. coli
O157:H7, 74,000 beef carcasses might be infected and, therefore, hundreds of thousands of pounds of hamburger.
⁴⁶
For this reason alone, the pathogen reduction component of HACCP (which necessarily includes performance standards and testing for microbes) seems thoroughly warranted.